County Westmeath VEC -v- Department of Education and Science & Ors, [2009] IEHC 373 (2009)

Docket Number:2007 1563 JR
Party Name:County Westmeath VEC, Department of Education and Science & Ors









JUDGMENT of Mr. Justice O'Keeffe delivered on the 10th day of July, 2009

  1. The Applicant seeks certiorari by way of judicial review of the decision of the second to fourth named Respondents (hereinafter "the Appeals Committee") of 15th October, 2007, whereby the said Respondents upheld the notice parties' appeal against the refusal by the Applicant to enrol the notice parties' son ("the son") as a student in Mullingar Community College. The Applicant also sought judicial review of the purported finding of the Appeals Committee that the enrolment policy of the Applicant may be at variance with the rights of parents, including the Notice Parties, regarding the enrolment of children. It also sought certiorari by way of judicial review of the finding that the notice parties' son has no school placement.

  2. Various declaratory reliefs were sought against the decision of the Appeals Committee.

  3. This case concerns the Education Act 1998 ("the 1998 Act") and the Education (Welfare) Act 2000 ("the 2000 Act"). Under the 1998 Act, students who are over eighteen years and/or the parents of students who are under eighteen years are conferred with certain entitlements under the 1998 Act, to be enrolled in schools. Where a school refuses to enrol them and/or suspends a student for a period of time and/or takes certain other action, there is an entitlement on behalf of the student to make an appeal under s. 29 of the 1998 Act.

  4. The Applicant in these proceedings is County Westmeath Vocational Educational Committee, notwithstanding the fact that the decision under appeal was that of the Board of Management of Mullingar Community School. Under the 1998 Act, Boards of Management of recognised schools outside the vocational sector are separate bodies corporate responsible for the school concerned. In the case of Vocational Educational Committee schools, the Boards do not have a separate legal identity. The schools are part of the Vocational Educational Committee structure and for operational purposes the Boards of Management are run as sub-committees of the Vocational Educational Committee. The Applicant in this case is responsible for management of Mullingar Community School.

  5. Ms. Hanley, the Principal of the school (who is also an ex officio member of the Board of Management of the school) stated that the second named Notice Party came to see her in May 2007, at which time her son was enrolled in St. Mary's CBS School ("the CBS"). The Notice Party informed her that her son had been told that he would not be "welcome back" to the CBS. Her son came to see her on the following day. He wanted to change schools in September. The school received, in July 2007, a letter from the Notice Parties seeking to have their son enrolled in the school. The Notice Parties were advised by letter of 13th July, 2007, pursuant to the enrolment policy, that documentation, including references from the previous school, were to be included with such application.

  6. The application form was dated 12th August, 2007, and stated that the reasons for applying for admission was "change of school".

  7. Ms. Hanley states that during the period 2007 up to the date of application, she had discussions with the principal of the CBS from which it was clear that the son had a serious disciplinary problem and that that school would not keep him on its rolls "if it could avoid it". The content of such discussions were completely at variance with the documentations sent to her by the CBS which supported his application for admission. The Board of Management of the school met on 14th August, 2007, and decided to refuse the application for enrolment. The reasons for that refusal were recorded by the Board of Management as follows: "Members were provided with copies of applications to enrol from three students, together with a copy of the school's Admission and Enrolment Policy. Two of these students are currently enrolled in St. Mary's CBS Secondary School and are being discouraged from returning in September. A discussion on the matter followed. Mr. McDermott stated that unless the students were formally expelled, they continued to be the responsibility of the school they were enrolled in, to provide their education. Ms. Purcell referred to a reference made by the Principal of St. Mary's that the student 'has a great future ahead of him provided the correct structures are in place', and felt that these structures should be in place in his current school. It was felt by some members of the Board that there appeared to be contradictions in the documentation provided by the school. Mr. Barrett and Mr. Reidy felt that the school had a duty of care to our own students and that they needed to feel that they had the support of school management. It was felt that it was paramount that every effort is made to support students and teachers of our school. The image of the school is important and all members agreed that difficult decisions were necessary to uphold the well-being of existing students. Having considered these two applications, the Board felt that in the circumstances, they were unable to accede to the request for enrolment." 8. The Notice Parties were informed by Mullingar Community College by letter dated the 15th August, 2007, that its decision was, "Having considered the application, the Board regret that they are unable to accede to your request as it would not be in the best interests of the school community". The Notice Parties appealed the refusal to the Vocational Educational Committee. The Appeals Application Form is dated 20th August, 2007. The form stated that the appeal application was in relation to a refusal to enrol the Notice Parties' son in the pre-Leaving Certificate year in Mullingar Community College, the Board of Management of such school having refused him entry. The grounds upon which the decision was being appealed was stated to be that the son had no school for pre-Leaving Certificate year 2007. The appeal to the Applicant was a first step in the process and was required to be completed within a 30 day period.

  8. The appeal procedures provide for efforts at local resolution as a first step. The facilitator, Mr. Tom Ashe, was appointed. In the course of this initial process, the Notice Parties went on two weeks holidays.

  9. Mr. Ashe's report is dated 12th September, 2007. He recounts a meeting with the Notice Parties on 29th August, 2007, who were anxious that a place in the school would be found for their son as quickly as possible, as at that time, he had no school to return to in September. He was a pupil, it said, in the CBS, up to the of May, but because the school was not satisfied with his behaviour, he was told to complete his studies for his Junior Certificate at home and to look for another school if he intended to pursue his studies. The full text of this report is set out in paragraph 54 hereof.

  10. By letter dated 18th September, 2007, the Notice Parties were informed by the Applicant that as it would not then be possible to arrange a hearing between the Applicant and the Notice Parties before the conclusion of the 30-day maximum period allowed, that it was regretted that the Chief Executive Officer of the Applicant could not adjudicate on the appeal and the Notice Parties were advised of their further right of appeal to the Department of Education and Science.

  11. The Notice Parties requested an appeal hearing under s. 29 of the 1998 Act. A further Appeal Application Form was sent to the Department by the first named Notice Party and dated 20th September, 2007. It was again stated that the appeal was in relation to the refusal to enrol, that the son had no school to return to for the year 2007, and that as he had already missed almost a month of the school year, that the Notice Parties were very eager to locate a school for him. He needed a fresh start and another start to show what he was capable of achieving. He would like to complete his Leaving Certificate. Mullingar Community College is the nearest school to where they lived.

  12. The second, third and fourth named Respondents are the Appeals Committee appointed by the first named Respondent under s. 29 of the 1998 Act. The hearing was held on 15th October, 2007. The Appeals Committee upheld the appeal of the Notice Parties against the refusal by the Applicant to enrol the Notice Parties' son in the Applicant's school. The Appeals Committee recommended that the son be enrolled forthwith in the pre-Leaving Certificate year at Mullingar Community College.

  13. The Appeals Committee made its decision for the following reasons:

    · The enrolment policy of Mullingar Community College with regard to transfers from post-primary schools, may be at variance with the right of parents to enrol their child in the school of their choice.

    · Following the withdrawal (of the son) from his previous school, he had no school placement.

    · Mullingar Community College has the capacity to accommodate the son in the Pre-Leaving Certificate class.

    · Based on the evidence presented at the hearing, the Committee felt that the level of misbehaviour by the son did not warrant a refusal to enrol in Mullingar Community College.

  14. The Appeals Committee stated that it took into account a range of issues:

    · The written and oral submission from both parties.

    · The Enrolment Policy of Mullingar Community College

    · The wish of Mullingar Community College not to be seen as the school of last resort for pupils with behavioural problems.

    · The Notice Parties were not issues with an enrolment policy when they applied to enrol the son in Mullingar Community College.

    · The effort made by the son and the Notice Parties to address...

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